P. v. Holmes

 

 

 

 

 

 

 

 

 

Filed 11/15/13  P. v. Holmes CA3

 

 

 

 

NOT TO BE PUBLISHED

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

 

 

 

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(San
Joaquin)

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   CLARENCE HOLMES,                           Defendant and Appellant.

C069953   (Super. Ct. Nos. SF111890A, SF112096A, SF114668A, & SF117664A)

 

 

            A jury
convicted defendant of willful failure to register as a sex offender within
five working days of his birthday based in part upon counsel’s stipulation that
he had been “convicted of a violation of Penal Code section 243.4, Sexual
Battery,” a registerable offense. 
Defendant claims that he was prejudiced by the failure of his attorney
to offer a stipulation that he was convicted of a felony requiring annual
registration within five days of his birthday.

            We do not
understand in what manner defendant was prejudiced by the different forms of
stipulation since he admitted that he was required to register and he makes no
claim that the form of the stipulation affected his failure to register.  That left only the claim that the failure to
register was not willful.  We disagree
and shall affirm the judgment.

FACTS

            Defendant
stipulated that he “was convicted of a violation of Penal Code section 243.4,
Sexual Battery, on November 13, 2000.”
 The People presented evidence that as a
result of this conviction defendant was required to register annually for life as
a sex offender within five working days of his birthday or a change of
residence.  Defendant was informed of
this requirement when he first registered on June 21, 2001, and several other times when he registered prior
to February 5, 2009, which
was the last time he registered.

            Defendant
testified, admitting he had been convicted of href="http://www.fearnotlaw.com/">sexual battery in 2000 and that he knew
he was required to register annually as a sex offender for life.  He had registered with the Stockton Police
Department approximately 15 times in that past 11 years.  When he went to the police department to
register on February 5, 2009,
he filled out a registration form and turned it in.  While waiting for the clerk to provide him
with a verification of having registered, he was listening to rap music on his
Walkman.  The music contained a lot of
“cussing” and he was singing aloud with the music.  A White female came out and took defendant to
a lobby as he continued to sing.  The
female must have believed he had called her the “B” word (probably bitch) because
she told him, “Get out.  Don’t come
back.”  Although he did not call her the
“B” word, he left and never returned because the lady had told him, “Don’t come
back.”

DISCUSSION

            Defendant
admits he was required to register but nonetheless makes a lengthy argument
that his attorney was ineffective for having offered the wrong stipulation
regarding the offense for which registration was required.  We need not respond to the argument since the
nature of the stipulation had no effect upon the defendant’s duty to register
and defendant’s counsel could not be deemed ineffective for having chosen one
over the other.  That left only the claim
that his failure to register was not willful.

            Defendant
claims that when he tried to register at the Stockton Police Department in
February 2009, he was “cussing” out loud to rap music.  An unknown female employee escorted him to
the lobby but he continued to sing the explicit music.  Ultimately, the employee told him to
leave.  We disagree that this shows that
the failure to register was not willful.

            Defendant
knew of the registration requirement but did not register.  He says he did not return to the police
station because the employee told him “Don’t come back.”  The evidence shows that defendant willfully
acted in a disruptive and offensive manner at the police station, willfully
declined to change his behavior even when escorted to the lobby, and willfully
chose not to make a further attempt to register.  There is no evidence that defense counsel’s
failure to procure a limiting instruction had anything to do with the finding
of guilt.

DISPOSITION

            The
judgment is affirmed.

 

 

                                                                            Blease                                 ,
Acting P. J.

 

 

We concur:

 

 

                Mauro                                 , J.

 

 

                Murray                                , J.